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Report No. 70

Chapter 81

Persons who May Sue for Redemption

Section 91

81.1. Introductory.-

The right of redemption and its limitations as well as other remedies having been dealt with, the Act proceeds to lay down who can redeem. Section 91 reads-

"91. Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of the mortgaged property, namely:-

(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;

(b) any surety for the payment of the mortgage-debt or any part thereof; or

(c) any creditor of the mortgager who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property."

81.2. Section 91-Co-mortgagor.-

Under this section, besides the mortgagor, the other specified persons may also redeem the mortgaged property. The case of co-mortgagor is not dealt with in specified words, but there can hardly be any doubt that the co-mortgagor falls within the expression "mortgagor".1 In general, when a mortgage is created jointly on property in which several persons are interested, each of the mortgagors is liable to pay the entire debt, unless there is a contract to the contrary.2

Thus, a debtor, who is a co-mortgagor, is liable for the whole debt jointly and severally with the other mortgagors and is entitled to redeem the entire property on payment of the debt. It was so held in a Bombay case3 and, with respect, this appears to be the correct view. If so, there can hardly be any doubt that a co-mortgagor falls within the principal expression "mortgagor" in section 91 and it is not necessary to relate his case to clause (a)-'Any person who has any interest in the property mortgaged or in or upon the right to redeem the same'.

The reason why, in section 92, after providing for the persons referred to in section 91, other than the mortgagor, a co-mortgagor is specifically mentioned, is that since the mortgagor was excluded by its very terms, the case of a co-mortgagor had to be provided for in the context of subrogation in that section. If the co-mortgagor is not mentioned specifically in section 92, then he would be excluded by the words excluding the mortgagor.

1. Cf section 95.

2. Cf section 40, Contract Act.

3. Ambu Ram Mhatra v. Blew Halya Patil, AIR 1957 Born 6 (7), para. 6 (Shah, J.).

81.3. Section 91(a)-Interest in the mortgaged property.-

In section 91(a), the words "interest in property mortgaged or in the right to redeem the same" have created considerable controversy. It is to be borne in mind that the interest must be in the property which is mortgaged and it, therefore, becomes necessary to determine whether the person claiming a right of redemption under section 91(a) is a person who is interested in such property. We are not concerned with the law as it was before 19291, although it would appear that the law was not in this respect, substantially different.

The expression "property mortgaged" means the interest of the mortgagor which has been made the subject matter of the mortgage. Hence a person claiming paramount title has no interest in the property.2 This is the reason why the landlord of a mortgagor lessor cannot redeem, nor can the puisne mortgagee redeem the subsequent mortgagee. It is also well-settled3 that the interest is a present interest, and not a contingent one, and further it must be a validly created one.4

It is immaterial how the interest came into being. Thus, where, by the law applicable to the last owner, there is a total failure of heirs, the property escheats to the Government as the ultimus haeres. If there is a valid and subsisting mortgage existing on the property, the Government will take the property subject to such mortgage,5 and will, as owner of the mortgagor's interest, be entitled to redeem the mortgage.6

1. See AIR 1953 Bom 315 (316).

2. AIR 1916 Born 923.

3. 42 CWN 1106 (1109).

4. (1861) 8 Moo Ind App 500 (525, 526, 527) (PC) (Property of Hindu Brahman); (1875) 1 Cal 391 (401) (PC).

5. (1861) 8 Moo Ind App 500 (525, 527) (PC) (Property of Hindu Brahman); (1875) 1 Cal 391 (401) (PC).

6. (1866) 11 Moo Ind App 619 (636) (PC).

81.4. Lessees.-

Difficulty, however, seems to have arisen in the case of a lessee of a mortgaged property. The matter has been considered at length in a judgment of the Nagpur High Court, to which we shall refer later. On principle, it would seem that a lessee is entitled to redeem the mortgage, being a person who has an "interest in the property mortgaged" or in the right to redeem the same. There are, in fact, observations to that effect of the Supreme Court1 though the case did not raise this particular question. However, decisions of the High Courts do not seem to be uniform in this regard.

1. Mangu v. Taraknath, AIR 1967 SC 1390 (1395), para. 11.

81.5. Case law.-

According to one view, section 91(a) clearly confers the right of redemption on any other person than the mortgagee who has an interest in the mortgaged property and there is nothing in that clause to indicate that the right can only be exercised where the interest is likely to be or can be affected by the mortgage. No fetters have been imposed in the clause, as it stands, on the right of redemption by a person "who has any interest in the property mortgaged", and the words "any interest" are wide enough to cover an interest, however, exiguous and remote it may be. The Nagpur High Court, has, however, in an elaborate judgment1 which reviews the case law, taken a different view on the ground that the lessee is not affected by the mortgage.

1. AIR 1947 Nag (Majority view).

81.6. Criticism.-

With respect, this view goes counter to the language of the section. prima facie, as was held by the Madras High Court,1 the word "interest" is not confined to a right of ownership, but is sufficiently large to include any minor interest such as that of a tenant. It is for this reason that a perpetual lessee2 and other lessees have been held to have an interest within the meaning of section 91(a).4-5

1. Paya Mathathil Appu v. Koyamal Amina, 1896 ILR 19 Mad 151 (153).

2. AIR 1925 Oudh 270 (271).

3. 1880 ILR 6 Cal 317 (319) (Zaripeshgi).

4. 1882 ILR 8 Cal 79 (87) (Patnidar).

5. AIR 1937 Oudh 146 (148).

81.7. Some decisions make a distinction between a lease for a term of years and a year to year lease.1 There does not, however, appear to be any justification for such a distinction in the language of the section. Of course, if the lease is void, the lessee has no right to redeem, because then he does not acquire any lawful interest.2

In an Allahabad case,3 it was held that a perpetual tenant was entitled to redeem. In the same case, it was observed that a tenant-at-will and a tenant on sufferance are not entitled to redeem.

In a Patna case,4 Chatterji and Reuben, JJ. held that a lessee is always entitled to redeem the mortgage as a person "interested". In an Oudh case,5 redemption was not allowed when the lease was binding upon the mortgagee. The extreme view on the side of redemption is expressed in a Calcutta case6 where a person whose lease was void was allowed to redeem.

1. AIR 1925 Oudh 270 (271).

2. AIR 1945 Pat 106 (108).

3. Raghunandan Prasad v. Ambika Singh, (1907) 29 All 679.

4. ILR 23 Pat 648.

5. Kalu Singh v. Hansraj Upadhiya, AIR 1925 Oudh 270.

6. Basanta Kumar v. Adarmani, (1936) 40 CWN 57;

See criticism in Pundarikakshadu v. Kondayya, AIR 1940 Mad 669.

81.8. Recommendation.-

In this position, it is desirable to make the matter clear by adding an Explanation in section 91 to the effect that a lessee of property is a person interested in the property. We recommend such an amendment.

The Transfer of Property Act, 1882 Back

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